Now that the election is past, I’d like to encourage us to move beyond politics (at least for two years but maybe longer) and to think more creatively about how MOJ and the development of Catholic Legal Theory can contribute its small part to the transformation of our culture.And, yes, I believe we have been given only a small but important portion of this vineyard to till.

As most of you know, I intentionally do not blog directly (at least not very often) on partisan politics, and I did not publicly endorse a candidate, although there was probably little doubt about who I thought was disqualified.As I have mentioned before, I don’t like to blog directly on partisan and especially electoral politics because of an intuition that we are engaged in a much more important, longer-term, and deeper project than the partisan bickering (no matter how important) of the moment.

Thanks to my children directing me to Gregory Wolfe, his collection of essays, Intruding Upon the Timeless, and his journal Image, I now have some words to express this intuition.In an essay entitled “Why I am a Conscientious Objector in the Culture War,” Wolfe states that he has strong opinions on most of the current hot button issues and will give voice to those opinions where appropriate.He is not bothered by the conflict but by the means used to wage the culture wars.“[T]he urgent need at the moment is to recognize that we cannot reduce culture and its various modes of discourse to nothing more than a political battleground.The political institutions of a society grow up out of a rich cultural life, and not the other way around.As it etymology indicates, the word culture is a metaphor for organic growth.Reducing culture to politics is like constantly spraying insecticide and never watering or fertilizing the soil.”

His words resonated with me.But, after reading this essay, I argued with my daughter that far from being a conscientious objector, Wolfe was fighting the culture war on another perhaps nobler front.Another of his essays showed me I was wrong, but that is for another post...

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consiousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

Riffing off of Rick Garnett's post questioning Doug Kmiec's editorial praising Senator Kennedy for supposedly building up the "culture of life" by sponsoring legislation providing for public financing of presidential campaigns, by Professor Kmiec's measure then, President-elect Barack Obama has undermined the "culture of life" by dealing a death blow to public financing of presidential campaigns.

Senator Obama had promised in writing and unequivocally to accept public financing for the fall campaign if he were the nominee, presumably to, as Professor Kmiec writes, "curb[] the corrupting influence of money in politics." Instead, Obama broke his promise, continued aggressive fundraising (including repeated trips to Hollywood to hobnob with the wealthy glitterati) to election day (and beyond), and introduced a massive flood of money (and a corresponding excess of television political advertising) into a presidential campaign, the likes of which we had not seen since the heyday of Richard Nixon.

After this year's experience, no future candidate for President will ever again accept public financing. If a significant part of Senator Kennedy's legacy is indeed public financing of presidential campaigns, it is perhaps ironic that the candidate to whom he gave an early endorsement became the candidate who by his actions destroyed that public financing and ensured that every future presidential campaign will be focused on raising and spending more and more money every four years.

Rick understandably but nonetheless incorrectly assumes that when I post something by someone else (e.g., John Haldane) on MOJ, I do so (in part) because I agree with the contents of the post.

Well, sometimes I do post something by someone else because I agree with the contents of the post and want to share it with MOJ readers.

But sometimes I post something by someone else not because I agree with it--I may not agree with it, or with all of it, or I may not even know whether I agree with it--but just because I think that many MOJ readers will be quite interested in it.

And sometimes I post something ... just to get a rise out of Rick. (Just kidding, Rick!)

Let's concede that, in his long career, Sen. Kennedy has sometimes championed legislation that has promoted the common good, well understood, and has sometimes even moved the ball in a positive direction (when he has not been pushing it in the wrong direction) on the "culture of life." Let's concede (not that it was ever really disputed) that the Church's teachings on life implicate more than the status of Roe v. Wade. But seriously . . . Does Doug Kmiec really now believe that Kennedy has "built up" the "culture of life" by "curbing the corrupting influence of money in politics with the public financing system for presidential candidates in 1974"?

We've talked a lot over the years, here at MOJ, about the importance of non-state associations and their expression to a free, authentically pluralist society. So, the developments described in this story might be of interest:

A Roman Catholic private school sued the Quebec Education Department, demanding the right to continue teaching its own curriculum rather than a new series of ethics and religious culture courses mandated by the province.

Loyola High School and a student's parent, John Zucchi, say the courses imposed by the province are "fundamentally incompatible with its Catholic convictions and mission" as it propounds an ideology of "normative pluralism" that trivializes religious belief.

Loyola asked to be exempted from the province's new courses in a formal letter to Education Minister Michelle Courchesne. Loyola wrote that it intended to adjust its program to make it compatible with the province's new courses. Its request was denied in early August. . . .

The school asserts that the minister denied its proposal for an alternative course of study due to her desire to achieve "complete uniformity in education throughout Quebec." In doing so she disregarded a section of the Education Act that allows religious schools to seek exemptions from the province's required programs of study if an equivalent program is provided, Loyola maintains. . . .

The state has no place in imposing its views about religion on children," the complaint states. Loyola said it strives to instill in its students an appreciation for other religions, but the province's courses are "unacceptable in that it would amount to inculcating in students two diametrically opposed world views."

Stay tuned!

UPDATE: A reader (from Canada) writes:

In Quebec a
private Catholic school receives funding from the State for the operational
aspects of the program. . . .Also in Canada we do not have the same separation of Church and State you do
in America. In Ontario, Saskatchewan and Alberta Catholic schools are public schools and receive full
funding both for capital construction andoperations.Catholic schools, as well as other faith
schools in the Provinces of British Columbia, Manitoba, and Quebec as well as
non-Catholic faith schools inSaskatchewan and
Alberta receive funds for operations but not capital.Such schools are
considered private.In Ontario
private faith schools, including private Catholic schools receive no funding of any type.Schools
in the four maritime provinces replicate the American model.

The Quebec case
is unusual because the exemption does exist. What I mean by unusual is that the exemption has not been allowed.
However you have tounderstand the history of Quebec
education and Quebec society in order to understand why the request has been denied.

I won't be surprised to find the courts
rule in favour of the government.The
schools only choice would be to reject the operational funds. They would
have been far better to not challenge the government and to
build a course which taught Catholicism within the syllabus of the new course.

MIAMI — A Florida law that has banned
adoptions by gay men and lesbians for over three decades is
unconstitutional, a judge here ruled on Tuesday.

“The best interests of children are not preserved by prohibiting
homosexual adoption,” the judge, Cindy S. Lederman of Miami-Dade
Circuit Court, said in a 53-page decision. She said the law violated
equal protection rights for children and their prospective parents.

A spokeswoman for the attorney general’s office said the state would
appeal, and the case is likely to end up before the State Supreme Court.

Florida
is the only state with a law prohibiting gay men and lesbians — couples
and individuals — from adopting children. The Legislature voted to
prohibit adoptions by gay men and lesbians in 1977, in the midst of a
campaign led by the entertainer Anita Bryant to repeal a gay rights
ordinance adopted by Dade County.

Some states, like Mississippi and Utah, effectively bar adoptions
by same-sex couples through laws that prohibit adoption by unmarried
couples. Arkansas voters passed a similar measure this month.

The ruling on Tuesday will allow Frank Martin Gill, 47, a gay man
from North Miami, to adopt two foster children whom he has raised since
2004. “Our family just got a lot more to be thankful for this
Thanksgiving,” Mr. Gill said in a news release issued by the American Civil Liberties Union, which represented him.

Robert Rosenwald, director of the LGBT Advocacy Project of the
American Civil Liberties Union of Florida and one of the lawyers on the
case, said, “The case means that these two boys won’t be torn from the
only home that they’ve ever known,” said.

The state presented experts who argued that there was a higher
incidence of drug and alcohol abuse among same-sex couples, that their
relationships were less stable than those of heterosexuals, and that
their children suffered a societal stigma.

But lawyers for Mr. Gill presented evidence contradicting those contentions, which Judge Lederman found persuasive.

“It is clear that sexual orientation is not a predictor of a person’s ability to parent,” she wrote.

Mr. Rosenwald called the decision a huge victory for gay and lesbian
parents and for almost 1,000 children in Florida waiting to be adopted.

“The court for the first time after hearing all of the evidence
determined that the scientific evidence is crystal clear,” he said.
“There is no dispute that children raised by gay parents fare just as
well or better than children raised by straight parents.”

The
great presidential contest is concluded. The words and expectations of
promise and hope sit well upon a Republic troubled by war and financial
ruin. Much ink has already run explaining the outcome, but oddly, most
if not all have overlooked a game-changing endorsement – that of Ted
Kennedy in January 2008. Just a short time later, Kennedy would be
diagnosed with brain cancer, which today he is fighting in the usual
stoic way the Kennedys handle adversity.

In politics, no one is free of controversy and Ted Kennedy has had
his share. Yet, it cannot be gainsaid that he has lived JFK's inaugural
observation that "here on earth, God's work must truly be our own."
Kennedy's faith is that of Francis calling us to look first to the
needs of the poor. It is the faith of Benedict and Thomas Aquinas
calling us to discipline our minds and to understand the importance of
seeking good and avoiding evil. It is the faith of Thomas More
reminding us that on this earth it is up to us to establish legal and
political systems of justice. It is the faith of John Paul II who
invited us to cross the threshold, not in fear, but with hope.

Ted Kennedy's faith also calls upon the Nicene Creed to remember
that despite our political differences, we remain "one holy catholic
and apostolic Church."

For too long in America, people of good will sharing the Catholic
faith have been divided. We have been told, or we have convinced
ourselves, that unless there is perfect agreement on every issue, there
can be no friendship. It has served the narrow, partisan political
interests of some to keep us divided, and those who profit politically
by such division were -- regretfully -- present again in 2008.

Often our most profound disagreements have been over the most
innocent -- the unborn. We grasp the necessary primacy of the right to
life, but then seemingly cannot comprehend that there may be more than
a single way to build a "culture of life." The church has always meant
this phraseology to be far broader than the reversal of one, aberrant
Supreme Court opinion.

Ted Kennedy has built up that culture by: reforming immigration in
1965 (abolishing irrational quotas); creating a federal cancer research
program in 1971 that quadrupled the amount spent on the number one
disease affecting millions of Americans each year; promoting women's
equality in college sports with the passage of Title IX in 1972;
curbing the corrupting influence of money in politics with the public
financing system for presidential candidates in 1974; securing the
creation of the Martin Luther King Jr. Day holiday in 1983; bringing
racial justice to South Africa by spearheading the 1986 anti-apartheid
efforts; co-authoring in the 1990s, the Family and Medical Leave Act
helping business to begin to understand the Catholic insight that "work
is for man; man is not for work; allowing for student loans at
subsidized rates; passing the law in 1996 that allows employees to keep
health insurance after leaving a job; sponsoring needed increases in
the minimum wage; requiring more rigorous testing of public school
students in 2001; and even in the last few months in the midst of his
own illness, securing Senate passage of a measure requiring doctors to
provide parents with the latest information about caring for children
with disabilities as well as available support services and networks
that can help parents unfamiliar with Down syndrome choose life. The
bill also calls for creation of a national registry of families willing
to adopt the disabled child. Today, 80 to 90 percent of women who learn
they are carrying an unborn child with Down syndrome opt for abortion.
Kennedy and co-sponsor Senator Sam Brownback, R-Kansas, believe
accurate information about services available will bring that
tragically obscene rate down.

The legislative accomplishments of Ted Kennedy remind us how our
faith is less categorical demand than the extension of empathy,
compassion and assistance to those who stand in need among us now,
whether that is a mother facing an unwanted or complicated pregnancy or
a worker who was been left behind in the race for corporate greed that
now gives rise to the financial bail-out.

With his early endorsement of the new president-elect, Ted Kennedy
was one of the first to invite us to contemplate replacing "the
politics of fear with the politics of hope." Thank you, Senator, in
this case, as in so many you have done your nation a great service.

(Douglas W. Kmiec is the Caruso Chair and Professor of Constitutional Law at Pepperdine University, School of Law.)

During the past two decades, every Democratic nominee for President has vigorously opposed school choice for poor children trapped in failing urban public schools, even while choosing to send his own children to private rather than public schools. Looking to the Presidents who had school-age children while in the White House in recent decades, Democratic President Clinton rejected the D.C. public schools and chose an elite Washington, D.C. private school for his daughter. Nonetheless, President Clinton stood loyally by the teachers' unions and resisted any federal support, even as a token, that would afford a similar choice for poor children in the District of Columbia. By contrast, Republican President G.W. Bush kept his twin daughters in public school in Texas, even as he supported the initiation of a school voucher pilot program in the District of Columbia.

Now we learn that our next Democratic President Barack Obama likewise has bypassed the D.C. public school system and selected the same elite and expensive private school -- Sidwell Friends -- for his two daughters. During the campaign, Obama adhered to the teachers' union mantra against educational choice. Having chosen Sidewell Friends as the school for his own children, might he now have a change of heart?

As said in a Washington Posteditorial urging continued support for school choice in D.C.: "[A]s President-elect Barack Obama and his wife decide what's right for Malia and Sasha, Mr. Obama might want to think about the families that he would deny this precious freedom of choice." The question is especially poignant now that the Obama family has chosen a private school that participates in the D.C. voucher program and thus includes children whose only opportunity to attend that school may be afforded by the continuation of the program. As the Washington Post concluded, if President Obama were to stand by his position that the D.C. voucher program should be terminated, "classmates of Malia and Sasha might lose the ability to attend their chosen school . . . . That wouldn't seem fair."

In this piece, Prof. Stone contends (among other things) that California's Proposition "was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs", and that "[t]his is a serious threat to a free society committed to the principle of separation of church and state." (Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court's decision upholding the ban on partial-birth abortion.)

There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree. For example, he is right, I think, that "[t]he First Amendment gives us virtually absolute protection to preach, proselytize and evangelize." We also agree -- as it happens, I have good religious reasons for believing -- that, as Greg Kalscheur has put it, there are "moral limits on morals legislation"

Prof. Stone and I (and Pope Benedict XVI) agree entirely regarding the importance of the principle of "separation of church and state", properly understood. To invoke this principle's importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) "conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do." As Stone himself writes, "[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability." I do not see why we should think that this is not what Prop. 8's supporters believe. Stone insists that religious believers "are not free – not if they are to act as faithful American citizens – to impose their religious views on others", but again, it does not follow from the fact that most of Prop. 8's supporters are religious believers that they are trying to "impose their religious views on others." (There are all kinds of issues, I would think, where it can be said that substantial support for the position enshrined in law comes or came from religious believers. After all, lots of Americans are religious believers.)